As he defends the federal gay marriage ban, Solicitor General Paul Clement wants you to forget everything he said last week about the federal health care law.

Reuters

Congress has no constitutional authority to punish people who don't want to have health insurance, Paul Clement argued last week before the United
States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of
constitutional authority to punish people who don't want to marry someone of the opposite sex. Last week, Clement defended states' rights and labeled
as "unprecedented" the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the
objections of states which have legalized same-sex marriage.

Welcome to the forlorn world of the Defense of Marriage Act, the teetering federal
law which defines marriage as solely that between a man and a woman and thus deprives same-sex married couples of certain federal rights and
privileges. This is the law that President Bill Clinton triangulated onto the books six weeks before the 1996 election. It is the law whose guts were fileted in 2010 by an esteemed federal trial judge. It is the law the Obama Administration last year all but gave up defending.
And it may just be the law, with all due respect to Proposition 8, that gets same-sex marriage to
the Supreme Court first.

On Wednesday, before the 1st U.S. Circuit Court of Appeals in Boston, it will be left to the House of Representatives to defend the honor of the
statute. Led by the indefatigable Clement (watching him these past few weeks is like watching Jerry Lewis in a Jerry Lewis movie), the bipartisan
lawmakers' group (spending your tax dollars) seeks to overturn U.S. District Judge Joseph Tauro's 2010 decision striking down a key
provision of the statute. If the House loses this appeal, if a federal circuit declares the DOMA unconstitutional, the Supreme Court
would be far more likely to intervene. Put that on your potential calendar for next term.

JUDGE TAURO'S RULING

The House of Representatives argues that Judge Tauro, a revered Nixon appointee, son of a
beloved state supreme court justice, only pretended to give the Defense of Marriage Act the respect to which a federal statute is typically entitled.
Judge Tauro, they wrote, "failed to apply rational basis review properly and either did not consider these [federal] interests or improperly discounted
them." Fighting words. So let's first go back briefly to recall what Judge Tauro wrote about the Defense of Marriage Act. Here is the link to his July 8, 2010, ruling. You really should read it.

Section 3 of the Defense of Marriage Act states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies
of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only
to a person of the opposite sex who is a husband or wife.

The question in Gill v. Office of Personnel Management is whether same-sex couples, whose marriages are lawful in the states in which they
reside, may be precluded by DOMA's Section 3 from participating in programs available to federal employees and their opposite-sex spouses. The lead
plaintiff, for example, is Nancy Gill, who works for the United States Post Office and who wants to add her spouse, Marcelle Letourneau, to coverage
under the Federal Employees Health Benefits Program. Yet here's how Judge Tauro described the legislative history of the marriage statute:

In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it "immoral," "depraved," "unnatural," "based on
perversion" and "an attack upon God's principles." They argued that marriage by gays and lesbians would "demean" and "trivialize" heterosexual marriage
and might indeed be "the final blow to the American family."

Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon
marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not
hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists
in family or child welfare (citations omitted).

For paragraph after paragraph, Judge Tauro ripped apart the official justifications for the statute. For example, he wrote:

Similarly, Congress' asserted interest in defending and nurturing heterosexual marriage is not "grounded in sufficient factual context [for this court]
to ascertain some relation" between it and the classification DOMA effects. To begin with, this court notes that DOMA cannot possibly encourage
Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more
generally, this court cannot discern a means by which the federal government's denial of benefits to same-sex spouses might encourage homosexual people
to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest
the government might have in making heterosexual marriages more secure (citations to footnotes omitted).

Then Judge Tauro gave the law's supporters, especially Tenth Amendmentistas, a blunt conservative
reminder about the extent to which the Marriage Act intruded (and intrudes even further today) upon traditional state law functions. Here, naturally
for a ruling that strikes down part of a federal law, is the essential states' rights argument. The judge wrote:

There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility
requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government
therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states' power to issue marriage licenses. And
indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government's argument assumes that Congress has some
interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.

Remember that when Judge Tauro was writing here about "the government," he meant the Obama Administration. Now, with the Justice Department stepping
into a mere "intervenor" role in the case, more forceful arguments on behalf of the law are being made to the federal appeals court. "The government"
now is essentially the House, led by Majority Leader John Boehner (R-Ohio), which is why Clement, the future conservative Supreme Court justice, will
be on his feet again. His head must be spinning. Legal standards aside, there are many mirror-like arguments here to the ones made over the Affordable
Care Act.

THE APPEAL

It is not the place of the federal judiciary to countermand the will of the majority as expressed in Congressional legislation, Clement and company
argue this week. So therefore, Judge Tauro's decision to strike down the federal law "amounts to a conclusion that the 427 members of
Congress who voted for DOMA (including then-Senator Joseph Biden), and President Clinton who signed DOMA into law, were not just misguided but were
patently irrational. That is not a judgment that can be sustained." In this case, they mean. Clement, of course, is making the exact opposite argument
in the Affordable Care Act case. Lawyers!

There's more preamble from the Book of Clement. He argues:

"[J]udging the constitutionality of an Act of Congress is the gravest and most delicate duty that th[e] Court[s] [are] called on to perform." The
Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States." Furthermore, "[a]
ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Therefore, the Supreme "Court does and should accord
a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by
constitutional majorities of the two Houses of Congress that an Act is [constitutional]."

The House argues that the federal courts should give great deference to the Marriage Act -- that the law should be evaluated under the least onerous
legal standard of review -- because it does not, by its terms, ban same-sex marriage. Instead, the argument goes, the federal law "[d]efines marriage
only for purposes of federal benefits and burdens." Clement told the First Circuit: "Congress thus 'did not penalize' same sex couples; it simply
'decide not to offer them a special inducement.'"

It was "rational" for Congress to do this, Clement argues, to help maintain the "status quo" on marriage in the face of state supreme courts (like this one in Hawaii in 1996) that were coming around to the notion that bans on same-sex
marriage violated equal protection guarantees in the Consituition. Judge Tauro, Clement wrote, "failed to give any weight to the fact that the 'status
quo' preserved by DOMA is a defining element of the most foundational institution in our society, which element has existed for all of history."

Next, Clement argues that Congress can always choose to protect the "public fisc" by excluding some groups. "In statutes apportioning benefits," he
wrote, "saving money by declining to expand pre-existing eligibility requirements is itself a rational basis." And here's how the House of
Representatives, which will be in session only 109 days this year, makes the financial argument supporting the Defense of Marriage Act. Clement wrote:

It certainly was reasonable for Congress to conclude that maintaining the traditional definition of marriage would save taxpayers' money, especially
because, at least at first, same-sex couples who stood to benefit from marital status would be far more likely to self-identify as married on federal
forms than same-sex couples who stood to lose federal benefits. That savings to the federal government in maintaining the traditional definition is
certainly evident with respect to the Gill Plaintiffs, who seek many thousands of dollars from the government based on DOMA's alleged
unconstitutionality.

What follows next in the House's brief, for dozens of pages, is enough to generate another full column. Under the sub-title "DOMA Furthers the
Government's Interest in Encouraging Responsible Procreation," Clement makes the argument that was so integral to (and so thoroughly rejected in) the
federal courts' analyses of California's Proposition 8, the 2008 ballot initiative which sought to ban same-sex marriage in the Golden State. Clement
wrote:

To the extent that marriage was designed to provide an incentive for opposite-sex couples facing an unplanned pregnancy to raise the child in a stable
two-parent environment, it is rational not to extend the institution to couples without the same ability to produce unplanned offspring... While some
same-sex couples have children, the overwhelming number of children remain in opposite-sex households (or are the product of opposite-sex couples but
in single-parent settings), and Congress rationally could focus its efforts on the latter by providing incentives for opposite-sex couples to wed.

So a statute designed to exclude a group from federal benefits actually was all about creating incentives for opposite-sex couples. Do more
opposite-sex couples get married or have children because same-sex couples cannot get federal benefits? Really? The problem with Clement's argument is
that it by necessity it seeks to bring the federal courts back to 1996. We know what Judge Tauro thought of that idea in the context of DOMA. And we know what U.S. District Judge
Vaughn Walker (another Republican appointee, by the way) thought of it in
the context of Prop 8. It's a losing argument.

POSTSCRIPT

If you were explaining the past week's arguments to an alien -- and by alien, I mean someone from Outer Space -- it would be hard to get around the
contradictions here. In America today, a federal law designed to reshape the health care market breaches some "fundamental" right to be free from
federal oppression. But a federal law that punishes people who want to marry their same-sex partner is worthy of obeisance from the judges. An
economic law that does not discriminate is supposed to be given less judicial deference than a moral one which does. I know the standards and
precedents are different. But on every level, this is crazy.

Whatever happens to Clement and the health care law, I think he's going to lose here at the 1st circuit. The wind is out of the sail of the Defense
of Marriage Act. The jig is up. Judge Tauro simply had the courage to say what many other federal judges, on both the right and the left, have long
thought. And there is a direct correlation between the Tauro ruling and the Administration's decision to abandon ship. So now what? In the big picture,
it matters less whether the DOMA supersedes state law than whether the DOMA itself violates the Constitution, which the Supreme Court would likely say
it does.

Why am I so certain? Because Justice Anthony Kennedy, the potential fifth vote to kill the Defense of Marriage Act, has a long history of eliminating
legislation just like it. In 1996, he authored the landmark gay rights ruling in Romer v. Evans, which begat the Court's decision in Lawrence v. Texas(which he also authored), which outlawed anti-gay sodomy
laws. So, even though he won't be in Boston on Wednesday, and even though the Supreme Court hasn't yet waded into the same-sex marriage fight, Justice
Kennedy is at the heart of both enormous cases. The law itself is on trial these days. And so is the justice.

Most Popular

The revolutionary ideals of Black Panther’s profound and complex villain have been twisted into a desire for hegemony.

The following article contains major spoilers.

Black Panther is a love letter to people of African descent all over the world. Its actors, its costume design, its music, and countless other facets of the film are drawn from all over the continent and its diaspora, in a science-fiction celebration of the imaginary country of Wakanda, a high-tech utopia that is a fictive manifestation of African potential unfettered by slavery and colonialism.

But it is first and foremost an African American love letter, and as such it is consumed with The Void, the psychic and cultural wound caused by the Trans-Atlantic slave trade, the loss of life, culture, language, and history that could never be restored. It is the attempt to penetrate The Void that brought us Alex Haley’s Roots, that draws thousands of African Americans across the ocean to visit West Africa every year, that left me crumpled on the rocks outside the Door of No Return at Gorée Island’s slave house as I stared out over a horizon that my ancestors might have traversed once and forever. Because all they have was lost to The Void, I can never know who they were, and neither can anyone else.

In Cyprus, Estonia, the United Arab Emirates, and elsewhere, passports can now be bought and sold.

“If you believe you are a citizen of the world, you are a citizen of nowhere. You don’t understand what citizenship means,” the British prime minister, Theresa May, declared in October 2016. Not long after, at his first postelection rally, Donald Trump asserted, “There is no global anthem. No global currency. No certificate of global citizenship. We pledge allegiance to one flag and that flag is the American flag.” And in Hungary, Prime Minister Viktor Orbán has increased his national-conservative party’s popularity with statements like “all the terrorists are basically migrants” and “the best migrant is the migrant who does not come.”

Citizenship and its varying legal definition has become one of the key battlegrounds of the 21st century, as nations attempt to stake out their power in a G-Zero, globalized world, one increasingly defined by transnational, borderless trade and liquid, virtual finance. In a climate of pervasive nationalism, jingoism, xenophobia, and ever-building resentment toward those who move, it’s tempting to think that doing so would become more difficult. But alongside the rise of populist, identitarian movements across the globe, identity itself is being virtualized, too. It no longer needs to be tied to place or nation to function in the global marketplace.

Deputy Attorney General Ron Rosenstein flew to Seattle for a press conference at which he announced little, but may have said a great deal.

Back in the fall of 2001, exactly one month after the 9/11 attacks, a lawyer in Seattle named Tom Wales was murdered as he worked alone at his home computer at night. Someone walked into the yard of Wales’s house in the Queen Anne Hill neighborhood of Seattle, careful to avoid sensors that would have set off flood lights in the yard, and fired several times through a basement window, hitting Wales as he sat at his desk. Wales survived long enough to make a call to 911 and died soon afterwards. He was 49, divorced, with two children in their 20s.

The crime was huge and dismaying news in Seattle, where Wales was a prominent, respected, and widely liked figure. As a young lawyer in the early 1980s he had left a potentially lucrative path with a New York law firm to come to Seattle and work as an assistant U.S. attorney, or federal prosecutor. That role, which he was still performing at the time of his death, mainly involved prosecuting fraud cases. In his off-duty hours, Wales had become a prominent gun-control advocate. From the time of his death onward, the circumstances of the killing—deliberate, planned, nothing like a robbery or a random tragedy—and the prominence of his official crime-fighting record and unofficial advocacy role led to widespread assumption that his death was a retaliatory “hit.” The Justice Department considers him the first and only U.S. prosecutor to have been killed in the line of duty.

A week after 17 people were murdered in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, teenagers across South Florida, in areas near Washington, D.C., and in other parts of the United States walked out of their classrooms to stage protests against the horror of school shootings and to advocate for gun law reforms.

A week after 17 people were murdered in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, teenagers across South Florida, in areas near Washington, D.C., and in other parts of the United States walked out of their classrooms to stage protests against the horror of school shootings and to advocate for gun law reforms. Student survivors of the attack at Marjory Stoneman Douglas High School traveled to their state Capitol to attend a rally, meet with legislators, and urge them to do anything they can to make their lives safer. These teenagers are speaking clearly for themselves on social media, speaking loudly to the media, and they are speaking straight to those in power—challenging lawmakers to end the bloodshed with their “#NeverAgain” movement.

Why the ingrained expectation that women should desire to become parents is unhealthy

In 2008, Nebraska decriminalized child abandonment. The move was part of a “safe haven” law designed to address increased rates of infanticide in the state. Like other safe-haven laws, parents in Nebraska who felt unprepared to care for their babies could drop them off in a designated location without fear of arrest and prosecution. But legislators made a major logistical error: They failed to implement an age limitation for dropped-off children.

Within just weeks of the law passing, parents started dropping off their kids. But here's the rub: None of them were infants. A couple of months in, 36 children had been left in state hospitals and police stations. Twenty-two of the children were over 13 years old. A 51-year-old grandmother dropped off a 12-year-old boy. One father dropped off his entire family—nine children from ages one to 17. Others drove from neighboring states to drop off their children once they heard that they could abandon them without repercussion.

Here are some readers with extra elements on this discussion—political, cultural, international. First, an American reader on the interaction of current concepts of masculinity and the nearly all-male population of mass gun murderers:

The path to its revival lies in self-sacrifice, and in placing collective interests ahead of the narrowly personal.

The death of liberalism constitutes the publishing world’s biggest mass funeral since the death of God half a century ago. Some authors, like conservative philosopher Patrick Deneen, of Why Liberalism Failed, have come to bury yesterday’s dogma. Others, like Edward Luce (The Retreat of Western Liberalism), Mark Lilla (The Once and Future Liberal), and Steven Levitsky and Daniel Ziblatt (How Democracies Die) come rather to praise. I’m in the latter group; the title-in-my-head of the book I’m now writing is What Was Liberalism.

But perhaps, like God, liberalism has been buried prematurely. Maybe the question that we should be asking is not what killed liberalism, but rather, what can we learn from liberalism’s long story of persistence—and how can we apply those insights in order to help liberalism write a new story for our own time.

A new study explores a strange paradox: In countries that empower women, they are less likely to choose math and science professions.

Though their numbers are growing, only 27 percent of all students taking the AP Computer Science exam in the United States are female. The gender gap only grows worse from there: Just 18 percent of American computer-science college degrees go to women. This is in the United States, where many college men proudly describe themselves as “male feminists” and girls are taught they can be anything they want to be.

Meanwhile, in Algeria, 41 percent of college graduates in the fields of science, technology, engineering, and math—or “STEM,” as it’s known—are female. There, employment discrimination against women is rife and women are often pressured to make amends with their abusive husbands.

According to a report I covered a few years ago, Jordan, Qatar, and the United Arab Emirates were the only three countries in which boys are significantly less likely to feel comfortable working on math problems than girls are. In all of the other nations surveyed, girls were more likely to say they feel “helpless while performing a math problem.”

The president’s son is selling luxury condos and making a foreign-policy speech.

Who does Donald Trump Jr. speak for?

Does the president’s son speak for the Trump Organization as he promotes luxury apartments in India? Does he speak for himself when he dines with investors in the projects? Does he speak for the Trump administration as he makes a foreign-policy speech in Mumbai on Friday?

“When these sons go around all over the world talking about, one, Trump business deals and, two, … apparently giving speeches on some United States government foreign policy, they are strongly suggesting a linkage between the two,” Richard Painter, President George W. Bush’s chief ethics lawyer who is a professor of law at the University of Minnesota, told me. “Somebody, somewhere is going to cross the line into suggesting a quid pro quo.”